In Liivam v. MacKay Contracting Ltd., 2025 BCSC 582, the British Columbia Supreme Court (the “Supreme Court”) held the employer wrongfully dismissed an employee during the employee’s probationary period. The Supreme Court held that the employer did not give the employee a reasonable opportunity to display his suitability for the position and made its decision on the basis of allegations that were not properly investigated.
Background
In this case, the plaintiff was employed by the defendant, MacKay Contracting Ltd. (the “Defendant MacKay”), as a Site Supervisor on a construction site in Cuba. The Defendant MacKay contracted with the defendant, Sherritt International Corporation (the “Defendant Sherritt”), to provide on-site construction management, supervision and other services. The Defendant MacKay’s contract with the Defendant Sherritt included a number of policies, including a “Deportment Policy”. Their agreement also included a separate document titled “Special Terms and Conditions”.
The Deportment Policy highlighted it was paramount that contractors uphold the Company’s reputation and comply with local laws, policies and rules. A contractor’s failure to comply with the Department Policy may result in immediate termination of a contract with the Defendant Sherritt. The Specials Terms and Conditions document highlighted that the Defendant Sherritt had the right to request immediate termination of the work assignment of the Defendant MacKay’s personnel.
Although the Deportment Policy did not form part of the plaintiff’s employment contract with the Defendant MacKay, he acknowledged that he had seen it, he had been informed of this policy, and was instructed that he was required to comply with this policy. In the plaintiff’s employment contract with Defendant MacKay, it contained a three-month probationary period, additional termination provisions, and reference to the company’s policies and procedures.
The plaintiff commenced employment with the Defendant MacKay in Cuba on October 15, 2022. On October 24, 2022, the Defendant MacKay informed him that there had been a complaint. The Defendant Mackay alleged that the plaintiff displayed “poor judgment on about everything”, including being rude to staff and engaging in inappropriate talk at the dinner table. In addition, it alleged that the plaintiff talked repeatedly about prostitution and drugs and asked the front desk clerk to obtain a female for him and bring a female to his room. The plaintiff denied the allegations made against him. The Defendant MacKay informed him that he was not permitted to be on-site, he needed to stay at his accommodation, and that they were working on arranging flights for him to return to Canada. The Defendant Mackay also highlighted that it was investigating the complaint. The plaintiff returned back to Canada on October 29, 2022. The Defendant MacKay terminated the plaintiff’s employment effective on October 30, 2022. The plaintiff’s termination letter stated that the plaintiff was terminated on the grounds of unsuitability.
The plaintiff informed the Defendant MacKay that he should have been paid for twelve days of employment and not six days. The Defendant MacKay declined to pay the plaintiff, citing that the situation arose because of the plaintiff’s misconduct.
Issues
The Supreme Court examined whether the Defendant MacKay breached its obligations to the plaintiff as a probationary employee when it decided to terminate his employment, what damages arose from the Defendant MacKay’s breach, and the manner in which the Defendant MacKay terminated the plaintiff’s employment, amongst other issues.
Findings
The Supreme Court found that the plaintiff understood that his suitability would be assessed over the first three months of his employment with the Defendant MacKay. However, based on the documentary record, the Supreme Court found that the Defendant MacKay did not investigate any of the allegations made. The Supreme Court also found that the defendant did not act fairly. The Defendant MacKay did not act with reasonable diligence in assessing the plaintiff’s suitability, and its decision to terminate the Plaintiff’s employment was not based on an honest, fair and reasonable assessment of the Plaintiff. As a result of the Defendant’s actions, the Supreme Court held that the Plaintiff was deprived of a reasonable opportunity to display his suitability for employment and he was wrongfully dismissed.
In addition to awarding damages for wrongful dismissal of approximately 4 ½ months and special damages, the Supreme Court found that an award of aggravated damages and punitive damages was appropriate because the defendant’s conduct caused the plaintiff stress, mental strain and was high-handed and malicious.
Key Takeaways
This case is an important reminder for employers that they are not absolved from conducting a fair and honest suitability assessment even when an employee is within a probationary period. In addition, it is important for an employer to document their concerns, to allow an employee time to respond to any allegations and conduct an impartial and fair investigation before terminating the employee’s employment. This case is also a reminder to employers to ensure they have a properly drafted employment agreement in place because it may have helped limit the employer’s liability in this case.
If you have any questions about the above decision or other workplace issues, please reach out to Tiffany Lee at [email protected].
